The Tort of Private Nuisance

Why it matters. It is the clearest Indian statement of the substantial interference test, it settles that proof of actual injury is unnecessary, and it draws the line between private and public nuisance that the criminal law and section 91 of the Code of Civil Procedure both turn on.

The factors that decide reasonableness

Locality. What is a nuisance in a residential colony may not be one in an industrial estate. The rule is old and is often stated as the observation that what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.

Duration and time. A single loud night is unlikely to be actionable; four hours of hammering every night for a year is.

Sensitivity. A plaintiff carrying on an unusually delicate trade cannot complain of an interference that would not trouble an ordinary occupier. But once a nuisance is established on the ordinary standard, the defendant takes the plaintiff as he finds him.

Malice. Conduct otherwise lawful may become a nuisance if done deliberately to annoy.

Utility. The social value of the defendant's activity is a factor in the balance and is never a complete answer. A factory that employs a thousand people may still be enjoined.

The defences, and the two that are not defences

Prescription is a defence. Twenty years of peaceable, open enjoyment as of right may confer an easement to continue. This is the rule in the Indian Easements Act 1882 and it is the strangest survival in this book: a right to pollute can be acquired by polluting long enough. Time runs from when the activity became a nuisance to the plaintiff, not from when it began.

Statutory authority is a defence. Where a statute authorises the very thing complained of and the defendant has done it without negligence, there is no actionable nuisance.

Coming to the nuisance is NOT a defence. A plaintiff who buys a house next to an existing factory may still sue.

Public benefit is NOT a defence. The utility of the activity goes to the balance, not to liability.

Worked example

Nandini buys a flat on the second floor of a building in Chembur in 2019. A bakery on the ground floor, working since 2006, runs its oven from one in the morning, and the flue discharges beside her window. Her walls are blackened and she cannot sleep.

Has she an interest in land? Yes, she owns the flat.

Is there an interference? Two: physical damage to the flat, and interference with quiet enjoyment.

Is it substantial and unreasonable? Blackened walls are physical damage and are almost always substantial. Noise and smoke at one in the morning in a residential building are hard to justify on locality, and the duration is nightly.

Coming to the nuisance? The bakery will say she bought knowing it was there. That is not a defence.

Prescription? The bakery will say it has run since 2006. Twenty years have not passed, and in any event time runs from when the flue began to affect the second floor, not from when the bakery opened.

What she gets. An injunction regulating the hours and requiring the flue to be raised or diverted, damages for the repainting, and costs. A court is unlikely to close the bakery.

What the statute would have given her. If the smoke is within the notified standard, nothing at all under the Air Act. If the noise exceeds the limits for a residential zone at night, a complaint to the police or the Board. The tort reaches the case the standards do not.

Distinctions

What it does NOT mean

It does not mean any annoyance is a nuisance. The interference must be substantial on an objective standard, and the courts have consistently refused to protect delicacy.

It does not mean physical damage must be proved. Ram Baj Singh decides the opposite. Interference with comfort is enough.

It does not mean a nuisance action is a good way to control pollution generally. It is between two parties, it protects land and not health as such, it is slow, and it produces no standard.

Limits and criticism

The tort's limits are exactly the reasons the statutes were needed. It protects an interest in land, so the landless are outside it. It requires an identifiable defendant, so diffuse pollution from many sources is beyond it. It is retrospective, so it cannot prevent. And the prescriptive right in the Easements Act allows the oldest and worst polluter the best defence.

What it retains is a real advantage. It gives an individual a remedy of his own, enforceable without any regulator's cooperation, and it reaches harm that complies with every standard.

Quick revision

• Private nuisance: unlawful interference with the use or enjoyment of land, actionable by a person with an interest in that land.
• Four elements: interest in land, interference, substantial, unreasonable.
• Ram Baj Singh (1982): the substantial interference test, the reasonable person standard, and no need to prove actual damage.
• Factors: locality, duration, sensitivity, malice, utility.
• Defences: prescription under the Easements Act, and statutory authority. Coming to the nuisance and public benefit are not defences.
• The remedy survives the statutes and reaches harm that meets every standard.

Test yourself

1. A tenant's guest is made ill by fumes from the next building. Can he sue in private nuisance? No. Private nuisance protects an interest in land, and a guest has none. The tenant may sue, and the guest may have an action in negligence or under the public nuisance provisions if he can show damage particular to himself, but the tort of private nuisance is not available to him.

2. A factory has emitted the same fumes for twenty-two years. Is it protected? Possibly, but not automatically. Section 15 of the Indian Easements Act 1882 allows an easement to be acquired by twenty years of peaceable enjoyment as of right, openly and without interruption. Time runs from the date the enjoyment became a nuisance to the plaintiff, not from the date the factory started, so a plaintiff who built beside it five years ago has an answer. A prescriptive right also cannot be acquired against a statutory prohibition.

3. Why is the tort still worth pleading when a statute covers the same discharge? Because a discharge within the notified standard is lawful under the statute and may still be an actionable nuisance to a particular neighbour; because the tort gives damages to the individual, which the statute does not; because it does not depend on any regulator choosing to act; and because an injunction can be framed to the plaintiff's circumstances in a way a general standard cannot.